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Dragseth v. Dragseth

Supreme Court of Alaska

July 10, 2009

Gina DRAGSETH, Appellant,
v.
Joseph DRAGSETH, Appellee.

Page 1207

Allan Beiswenger, Law Office of Allan Beiswenger, Anchorage, for Appellant.

Steven Pradell, Steven Pradell & Associates, Anchorage, for Appellee.

Before : FABE, Chief Justice, EASTAUGH, CARPENETI, and WINFREE, Justices.

OPINION

WINFREE, Justice.

I. INTRODUCTION

Following divorce proceedings, Gina Dragseth appeals the trial court's award of child custody, determination that certain promissory notes were Joseph Dragseth's separate property, and decision allowing Joseph to pay a portion of an attorney's fees award with certain property rather than cash. Because the custody decision does not adequately reflect that the court considered relevant statutory factors and the best interests of the children, we vacate the physical and

Page 1208

legal custody awards and remand for further proceedings. Because the promissory notes were not presented or analyzed under the correct legal framework, we vacate the determination that the notes were Joseph's separate property and remand for further proceedings. In light of these rulings, we vacate the order for attorney's fees and remand for renewed consideration at the conclusion of the proceedings.

II. FACTS AND PROCEEDINGS

Gina and Joseph Dragseth married in March 1993. They have two minor children: a son born in May 1995 and a daughter born in June 1997.

Joseph attended junior college and has vocational certificates and experience as an oilfield operator. He is employed on the North Slope and typically has a three-weeks-on/three-weeks-off schedule, meaning he is unavailable for three-week periods while he is working. He generally is allowed to take summers off for commercial fishing. Gina has a high school diploma and a pharmacy technician degree, and Before the marriage was employed as a head pharmacy technician. However Gina was the children's primary caregiver and was not employed outside the home for roughly the last ten years of the marriage.

Relevant to this appeal are two income-producing promissory notes in favor of Taku Marine. Taku Marine was originally established as a fifty-fifty partnership between Joseph and his parents. Joseph purchased his parents' partnership interest in 1998, after which Joseph continued to operate Taku Marine as a sole proprietorship. Also relevant to this appeal is a marine engine (with an agreed value of $5,000) included in the parties' lists of marital assets.

Gina filed for divorce in August 2007. After an evidentiary hearing an interim order for child custody and visitation, child and spousal support, and attorney's fees was entered in December 2007. Trial took place in early May 2008, and the trial court issued its findings of fact and conclusions of law on May 13, 2008. Gina filed a motion for reconsideration, but it was denied under Civil Rule 77(k)(4) when the trial court did not rule on it.

Gina appeals.

III. STANDARD OF REVIEW

The trial court " has broad discretion in determining child custody," [1] and we will not set aside a child custody determination unless the lower court's factual findings are clearly erroneous or unless the lower court abused its discretion.[2] " A court abuses its discretion if it issues a custody decision without considering all statutorily mandated factors that are relevant to the case at hand." [3] The court's findings should give us " a clear indication of the factors which the superior court considered important in exercising its discretion or allow us to glean from the record what considerations were involved." [4] We will set aside the court's factual findings as clearly erroneous only if review of the entire record " leaves us ‘ with a definite and firm conviction ... that a mistake has been made.’ " [5]

The equitable allocation of marital property is reviewed for abuse of discretion, as is the characterization of property as marital or separate.[6] Whether the trial court applied the correct legal rules in the process of classifying property is reviewed de novo.[7]

IV. DISCUSSION

A. Child Custody


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